Citation Nr: 1524801
Decision Date: 06/10/15 Archive Date: 06/19/15
DOCKET NO. 13-35 921 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire
THE ISSUE
Entitlement to a higher (compensable) initial disability rating for hypertension.
REPRESENTATION
Appellant represented by: New Hampshire State Office of Veterans Services
ATTORNEY FOR THE BOARD
K. Anderson, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant in this case, had active military duty from July 1995 to June 2010.
This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, that granted service connection for hypertension and assigned an initial noncompensable (0 percent) disability rating, effective June 24, 2010.
FINDING OF FACT
For the entire initial rating period from June 24, 2010, hypertension was continuously treated with medication, and has a history of diastolic pressure that more nearly approximates diastolic pressure of 100.
CONCLUSION OF LAW
Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent initial disability rating for hypertension, and no higher, have been met for the entire period on appeal from June 24, 2010. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7101 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A.
§§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) ; 38 C.F.R.
§ 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1).
In an appeal for a higher initial rating, because the appeal arises from the Veteran's disagreement with the initial rating following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).
In any event, VA provided the Veteran notice letters in October 2010 and September 2013 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate the underlying claim, and of the Veteran's and VA's respective duties for obtaining evidence.
VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.
38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159. In this case, service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision; therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4).
The Veteran was provided VA examinations in November 2010 and October 2013, which involved a review of the pertinent medical history as well as examination and findings, so provides relevant hypertension rating information regarding the history, level of severity, and medication history. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim was then readjudicated by a December 2013 supplemental statement of the case. In light of the foregoing, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.
Initial Rating for Hypertension
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2014). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). Hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more, is rated 20 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. 38 C.F.R. § 4.104.
Note (1) to Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104.
When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In this case, the Board will evaluate the issue as an appeal for higher rating of the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Id. The Board has considered whether a staged rating is warranted in this case, and finds that the severity of the service-connected hypertension has not changed during the course of the appeal so as to warrant staged ratings.
In this case, in November 2011, the Veteran disagreed with the noncompensable (0 percent) initial disability rating assigned following the grant of service connection for hypertension. See 38 C.F.R. § 4.31 (2014) (providing that a zero percent rating is assigned when the requirements for a compensable rating are not met). The initial rating period on appeal is from June 24, 2010. In his substantive appeal (on a VA Form 9) that was received in December 2013 in response to the October 2013 statement of the case, the Veteran quoted the Diagnostic Code 7101 rating criteria for a 10 percent disability rating, and contended that he had taken medication for control of blood pressure. He submitted pharmacy and treatment records showing that he was on one blood pressure medication from June 2010 to January 2011 (Verapamil), then was placed on Lisinopril for the subsequent years.
After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the disability picture associated with hypertension more closely approximates the criteria for a 10 percent initial schedular rating under DC 7101 throughout the initial rating period from June 24, 2010. The evidence shows that hypertension was diagnosed during service, and was continuously treated with medication beginning during service, and for the entire initial rating period, and shows a history of diastolic pressure that more nearly approximates diastolic pressure predominantly of 100.
Service treatment records show that that in 2009, even while on blood pressure medication for control of hypertension, the Veteran's blood pressure was reported to be as high as 160/90s when he was angry. Post-service measures of blood pressure also were all taken while the Veteran was on blood pressure medication for control of hypertension. A November 2010 VA examination report reflects systolic/diastolic blood pressure readings of 116/84 after three consecutive readings. Blood pressure was recorded as 128/72 in August 2013. An October 2013 VA examination report reflects blood pressure readings of 148/100 and 140/96. Private health care provider blood pressure reading were recorded as 128/90 in April 2013, 142/98 in March 2012, 150/104 in February 2012, and 128/90 in April 2013. All readings were taken while the Veteran was on blood pressure medication to control the hypertension.
The evidence of record shows that the Veteran requires continuous medication for control of the hypertension, and all that the above cited blood pressure readings were taken during the time the Veteran was on medication for control of the hypertension. The Veteran submitted specific pharmacy and treatment records showing that he was on one blood pressure medication from June 2010 to January 2011 (Verapamil), then for better control, was placed on Lisinopril for the subsequent years.
In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that hypertension was manifested by a history of diastolic pressure that more nearly approximates 100, with continuous medication required for control. In reaching this conclusion, the Board notes that the blood pressure readings created during the entire rating period are necessarily lower because the Veteran was on medication precisely to control the hypertension, which included a medication change in 2010 for better control of the hypertension. There is no numerical requirement for how many blood pressure readings need to exceed diastolic 100 before they may be considered "predominantly" 100. Additionally, where the evidence clearly establishes the requirement (and actual usage) of medication to control blood pressure for the entire initial rating period, and there are some diastolic blood pressure readings of 100 during the initial rating period, as well as other diastolic readings approximating 100, even while the Veteran is on the medication, the overall rating criteria for a 10 percent initial disability rating are more nearly approximated. The Board finds that the evidence includes findings sufficiently characteristic to identify the disease and the disability therefrom, and to identify a ratable functional impairment of hypertension that is elevated with anger and that requires medication for control. See 38 C.F.R. § 4.21 ("it is not expected . . . that all cases will show all the findings specified).
For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the disability picture for hypertension more closely approximates the criteria for an initial 10 percent rating under Diagnostic Code 7101 for the entire initial rating period from June 24, 2010. See 38 C.F.R. §§ 4.3, 4.7. The Board next finds that the evidence weighs against a finding that the criteria for a higher rating than 10 percent under DC 7101 are met or approximated for any period. During the initial rating period, diastolic readings were consistently less than 110, and systolic readings were consistently less than 200, as required for a higher rating than 10 percent.
Extraschedular Consideration
The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2014); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating.
Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected hypertension is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of history (blood pressure readings and medication) and clinical findings (blood pressure readings). The schedular rating criteria at Diagnostic Code 7101 specifically provide alternative criteria for ratings of hypertension based on systolic blood pressure readings, diastolic pressures readings, or medication for control in the context/history of elevated blood pressure readings.
The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.
38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the Veteran's symptoms are specifically contemplated by the schedular rating criteria discussed above. Additionally, he has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Thus, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to
38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
A 10 percent initial disability rating for hypertension, but no higher, for the entire initial rating period, is granted.
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J. Parker
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs